Wright v. MacConnell

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Dwaine Wright - It is therefore respectfully recommended that this case be dismissed without prejudice for failure to state a claim upon which relief can be granted under § 1983 or for lack of subject matter jurisdiction. Objections to R&R due by 7/9/2015. Signed by Magistrate Judge Michael R. Merz on 06/19/15. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DWAINE WRIGHT,
Plaintiff,

-

vs

:

Case No. 3:15-cv-211

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-

RION MacCONNELL,

Defendant.

:

REPORT AND RECOMMENDATIONS

This action is before the Court for review prior to issuance of process.

Plaintiff is a

prisoner within the meaning of 28 U.S.C. § 1915A(c). § 1915A was added to the Judicial Code
by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective
April 26, 1996)(the "PLRA") and provides in pertinent part:
(a) Screening -- The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.
(b) Grounds for Dismissal -- On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint -(1) is frivolous, malicious, or fails to state a claim upon which
relief can be granted; or
1

(2) seeks monetary relief from a defendant who is immune from
such relief.
The PLRA also amends 28 U.S.C. § 1915(e)(2) to read as follows:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal -(i) is frivolous or malicious;

2

(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief
(iii) seeks monetary relief against a defendant who is immune from
such relief.
A district court must screen prisoner complaints under both § 1915A and § 1915(e)(2). McGore
v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d
1131 (6th

Cir. 1997)(Administrative Order 97-01 of Chief Judge Martin).

The PLRA is

constitutional. Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997).
A complaint is frivolous under 28 U.S.C. § 1915 if it lacks an arguable basis either in law
or in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989);
the language of § 1915A suggests strongly that Congress intended to carry the same meaning
over to the new Act. The Court "is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the truth of the plaintiff's allegations."
Denton, 504 U.S. at 32.
A complaint is frivolous under 28 U.S.C. § 1915 if it lacks an arguable basis either in law or in
fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); the
language of § 1915A suggests strongly that Congress intended to carry the same meaning over to
the new Act. The Court "is not bound, as it usually is when making a determination based solely
on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton, 504
U.S. at 32.
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the
Supreme Court:
Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he
pleading must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the
3

complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“ Rule 12(b)(6) does not
countenance ... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very
remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, “‘this basic deficiency should
... be exposed at the point of minimum expenditure of time and
money by the parties and the court.’” 5 Wright & Miller § 1216, at
233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F.Supp.
643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc.
v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)],
at 346, 125 S.Ct. 1627; Asahi Glass Co. v. Pentech
Pharmaceuticals, Inc ., 289 F.Supp.2d 986, 995 (N.D.Ill.2003)
(Posner, J., sitting by designation) (“[S]ome threshold of
plausibility must be crossed at the outset before a patent antitrust
case should be permitted to go into its inevitably costly and
protracted discovery phase”).
Twombly, 550 U.S. at 558; see also Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545 (6th Cir. 2007). Twombly and Iqbal apply to review of complaints for failure
to state a claim under §§ 1915A(b)(1) and 1915(e)(2)(B)(II). Hill v. Lappin, 630 F.3d 468 (6th
Cir. 2010).
While not explicitly mentioned in the PLRA, a district court must also determine whether
it has jurisdiction to entertain a lawsuit. Federal courts are courts of limited jurisdiction; they are
empowered to hear only those cases which are within the judicial power of the United States as
defined in the United States Constitution and as further granted to them by Act of Congress.
4

Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976).
Therefore there is a presumption that a federal court lacks jurisdiction until it has been
demonstrated. Turner v. President, Directors and Co. of the Bank of North America, 4 U.S. 8
(1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded by the person
seeking to show it. Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party
asserting jurisdiction if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 182-83 (1935). A federal court is further obliged to note lack of subject matter jurisdiction
sua sponte. Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465
(6th Cir. 2009); Capron v. Van Noorden, 6 U.S. 126 (1804); Clark v. United States, 764 F. 3d 653
(6th Cir. 2014).
Plaintiff brings this lawsuit to recover money paid to Defendant MacConnell for services
which MacConnell allegedly promised but never delivered. He seeks actual damages in the
amount of $500 and punitive damages in the amount of $1,000.
Plaintiff purports to bring this case under 42 U.S.C. § 1983. 42 U.S.C. § 1983, R.S. §
1979, was adopted as part of the Act of April 20, 1871, and reads, as amended:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress , except that in any action brought against a
judicial officer, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
5

The statute creates a cause of action sounding essentially in tort on behalf of any person
deprived of a constitutional right by someone acting under color of state law. City of Monterey v.
Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School
District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978). The purpose of
§ 1983 is to deter state actors from using the badge of their authority to deprive individuals of
their federally guaranteed rights and to provide relief to victims if such deterrence fails. Wyatt v.
Cole, 504 U.S. 158 (1992). In order to be granted relief, a plaintiff must establish that the
defendant deprived him of a right secured by the U.S. Constitution and the laws of the United
States and that the deprivation occurred under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981); Flagg Brothers Inc. v. Brooks, 436
U.S. 149, 155 (1978).
The Complaint does not allege that Defendant MacConnell is a state actor, that the
fraudulent scheme he has worked on the Plaintiff is an action done on behalf of a state or local
political entity. Therefore the Complaint does not state a claim upon which relief can be granted
under 42 U.S.C. § 1983.
If the Court were to ignore the allegations under § 1983 and just treat this as a case for
money damages between citizens of two different States, the Court would not have subject
matter jurisdiction, because the minimum amount in controversy in a diversity if citizenship case
must be $75,000.
It is therefore respectfully recommended that this case be dismissed without prejudice for

6

failure to state a claim upon which relief can be granted under § 1983 or for lack of subject
matter jurisdiction.

June 19, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

7